T HANAMAN THE GOWDA Vs. EREGOWDA

JUDGEMENT

(1.) The appellant is the defendant, respondents 1 (a), 1 (b) and 1 (c) are the legal representatives of the first plaintiff, who died during the pendency of the appeal in the lower appellate Court. Respondents 2, 3 and 4 are plaintiffs 2, 3 and 4. The suit was filed for recovery of a sum of Rs.2,000 as damages for malicious prosecution. The trial Court decreed the suit awarding Rs.250 to each of the four of the plaintiffs. That decree has been confirmed by the lower appellate Court. Both the lower Courts have held that there was want of reasonable and probable cause for the prosecution and have inferred malice on the part of the defendant.

(2.) It is contended on behalf of the appellant that the finding of the lower appellate Court that there was want of reasonable and probable cause is erroneous since the burden of proof has been thrown wrongly on the defendant; and, secondly, that there is no evidence of malice and that therefore the suit should not have been decreed. In Abrath v. N. E Rly. Co., (1883) 2 QB. 440 it has been held that the onus of proving the existence of such facts as tend to establish the want of the reasonable and probable cause on the part of the defendant, rests upon the plaintiff. In Hermman v. Smith, (1938) 1 All.E.R. 1. the definition of reasonable and probable cause as stated in Hicks v. Faulkner in the following words was cited with approval.

(3.) In Selvappan v. Chaluvamuthu Goundar, (1968) 1 Mys.L.J. 488. following the decision in All India Reporter 1926 PC. 46, it is held that the ingredients to be established by the plaintiff are that he was prosecuted by the defendant that the proceedings complained of terminated in favour of the plaintiff if from their nature they were canable of so terminating that the prosecution was instituted against him without anv reasonable or probable cause and that it was due to the malicious intention of the defendant, and not with a mere intention of carring the law into effect. It was further observed that, the real question is not whether it was the subject matter of the criminal prosecution, but whether the plaintiff proves that the defendant invented and instiatod the whole proceedings for prosecution. The contention of the appellant in that case that the order of acquittal in the criminal case raises a presumption that the prosecution was not instituted without anv reasonable or probable cause, was negatived and it was held that the civil court had to undertake an entirely independent enquiry and should satisfy itself that there was no reasonable or probable cause and could not take into consideration the grounds upon which that acquittal rested.